District court dismisses copyright infringement lawsuit accusing Disney of “pirating” elements of screenplay for use in its Pirates of the Caribbean franchise.
Writers Arthur Lee Alfred II and Ezequiel Martinez Jr. and their producer Tova Laiter filed suit in 2017, alleging that The Walt Disney Co.’s Pirates of the Caribbean film franchise infringed their copyrighted screenplay. The court granted Disney motion to dismiss on the grounds that the works were not substantially similar as a matter of law.
Laiter alleged that, in 2000, when Alfred and Martinez were working on an unrelated project with Disney, he sent Disney a script titled Pirates of the Caribbean, which Disney declined to purchase. Three years later, the first movie of Disney’s five-film Pirates of the Caribbean franchise debuted in theaters. Disney conceded that they had access to plaintiffs’ screenplay and that plaintiffs owned the copyright in that screenplay, for purposes of its motion to dismiss.
To determine whether there is substantial similarity between the parties’ works, courts apply intrinsic and extrinsic tests. As the district court noted, the extrinsic test asks whether there are “articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events in the works.” After objectively comparing the works, the district court found that the works were not substantially similar and dismissed plaintiffs’ copyright suit with prejudice, finding that “[a]t most, Plaintiffs have demonstrated random similarities scattered throughout the parties’ works.”
The “single purported [plot] similarity” of “[s]upernatural ‘cursed’ pirates or ‘skull faced’ pirates” was, according to the court, scènes à faire and therefore unprotectable. Alleged similarities including “treasure maps, ghost pirates, the ‘undead,’ the supernatural, ships flying black sails, skeletons, privateers, naval attacks, dark fog, the ‘pirate code,’ ghosts, and sea monsters” were similarly unprotectable because they are “familiar stock scenes, and characteristics” that naturally flow from the pirate premise. Further, the court concluded that the sequence of events in the parties’ works were not substantially similar, as “a closer inspection reveal[ed] that they [told] very different stories.”
The court also rejected plaintiffs’ argument that the main characters in the screenplay were “delineated,” “consistent” and “widely identifiable” with several characters in the Pirates of the Caribbean films. Plaintiffs’ Davey Jones was not substantially similar to defendants’ “funny,” good-hearted, “cocky,” drunken Jack Sparrow, because “cockiness, bravery, and drunkenness are generic, non-distinct characteristics which are not protectable.” Moreover, their physical appearance and character arcs were fundamentally different. The court found that any similarity between the other character were based on unprotectable stock elements.
The court found that plaintiffs’ themes of love being worth more than treasure and the costs of piracy, while facially similar to the theme of love in Disney’s films, were not substantially similar given how differently the themes were developed in the parties’ works. Similarly, various subthemes, including the passage of 10 years, mutiny and betrayal, were also “generic” or “naturally flowing” from the premise of pirates and thus unprotectable.
With respect to dialogue, Plaintiffs “failed to demonstrate [an] extended similarity in dialogue” between works “as required for the works to be substantially similar.” Where similar dialogue appeared, the context and characters differed drastically, or the dialogue was unoriginal.
The court also found that neither the mood, setting nor pace of the parties’ works were substantially similar. Disney’s works were much darker and included more violence than did plaintiffs’ screenplay, and any similarity in mood stemmed from the pirate premise. The settings of the parties’ works aboard pirate ships also flowed naturally from the pirate premise, and furthermore were modeled on Disney’s preexisting Pirates of the Caribbean theme-park ride. Finally, the court found that the pace of the works was not substantially similar, as the passage of time was not comparable.
The court denied plaintiffs’ request for leave to replead in order to add allegations concerning the scripts for the Disney films, noting that plaintiffs had alleged that Disney’s films, not the underlying screenplays, were infringing.